Brendan McDermid / Reuters

Demonstrators converge on privately owned public space, raising questions about legal rights

Whatever your opinion of the ongoing Occupy Wall Street protest, the act itself highlights the importance of public space in cities today. The site of the protest, Zuccotti Park, isn’t actually a park, per se. It’s actually a privately owned public space, typically a concession made to the public by developers in order to obtain zoning approval to build higher or more than the code usually allows. It’s a corporatization of the public square of yore that’s somewhat symbolic of the larger systems the demonstrators are protesting. It also raises some questions about what’s allowable in a public space that’s technically not owned by the public. Legally, it’s a very gray area.

A recent article from the Wall Street Journal reports that the New York Police Department urged the owners of the park not to remove the demonstrators. The NYPD press office declined to comment on the legality of occupying the park, deferring to its owners, Brookfield Office Properties.

“Zuccotti Park is intended for the use and enjoyment of the general public for passive recreation,” the company said in a statement. “We are extremely concerned with the conditions that have been created by those currently occupying the park and are actively working with the City of New York to address these conditions and restore the park to its intended purpose.”

Historically, the intended purposes of public spaces have been numerous, but political demonstration has always been one of them.

“Public space in cities has traditionally been used to project ideas: political ideas, ideological concepts, et cetera,” says Jerold Kayden, a professor of urban planning and design at Harvard. He refers to the historical conception of public spaces as not just physical places but as a “marketplace of ideas.”

“Isn’t that an almost ironic phrase,” says Kayden, “given the intent of the demonstration?”

But being a privately owned public space, there’s an added irony in Zuccotti Park. The park was built in the 1960s and originally named One Liberty Plaza. Its developers received a zoning concession for building the park, as well as an additional 300,000 square feet in exchange for another plaza space around the building, according Kayden, who produced a survey and a subsequent book about privately owned public spaces in New York. That’s a lot of extra – and rentable – space.

But because of its quasi-public nature, the park’s rules are a little murky. Kayden calls parks like these “law’s oxymoronic invention.” Their owners are allowed to impose a reasonable set of rules for public conduct, but the definition of “reasonable” has never been made clear.

Brookfield has allowed this usage of its park, at least for the past 12 days. But if they wanted to kick everyone out, technically it seems they could. Probably.

As Kayden notes, the constitutional protection of free speech applies only when speech is being infringed by government action. The gray area emerges, though, because of the public aspect of this particular privately owned space.

“Is there a close enough nexus between the government and Brookfield? At the end of the day, could private behavior be interpreted as government action? Is Brookfield effectively a government actor?” asks Kayden. “Rules need to be articulated about what can and cannot be prevented by owners of these places.”

For now, the demonstration and use of the park continues. How long it’s able to last, what actions the park’s owners may eventually take, if ever, and what role the protection of free speech plays are all still uncertain. The choice of the park as the demonstration’s site – be it coincidental or purposeful – calls for greater attention to these private-but-public places and how they blend into or clash with the public realm.

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